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State v. Todisco5/30/2000
l procedure that expressly covers time limits for sentencing hearings. On December 1, 1998, the New Mexico Supreme Court promulgated Rule 5-701(B) NMRA 2000 which provides, "Except for good cause shown, the sentencing hearing shall begin within ninety (90) days from the date the trial was concluded or the date a plea was entered." The existence of a separate rule that establishes time limits for sentencing suggests that Rule 5-604(B) was not intended to apply to sentencing but was intended to apply only to trials and habitual criminal proceedings, as the plain meaning of the rule suggests. See State v. Michael S., 120 N.M. 617, 618, 904 P.2d 595, 596 (Ct. App. 1995) (reviewing court ordinarily should give effect to plain language of statute or rule); State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct. App. 1989) (reading Rule 5-604(B) according to its plain meaning).
Therefore, we conclude that Rule 5-604(B) is inapplicable to the amenability hearing on remand. Moreover, because Defendant did not assert below, and does not argue on appeal, a violation of Rule 5-701(B), we do not consider the issue on appeal. See Rule 12-216(A) NMRA 2000; State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986).
The Court Did Not Abuse Its Discretion On Remand
Finally, Defendant argues that the district court abused its discretion in finding that Defendant "is not amenable to treatment or rehabilitation as a child in available facilities," see § 32A-2-20(B)(1), and that he is not likely to be rehabilitated in "facilities currently available." See § 32A-2-20(C)(6). Whether Defendant is amenable to treatment or rehabilitation as a child is a determination "ultimately left to the discretion of the district court." State v. Sosa, 1997-NMSC-032, 9, 123 N.M. 564, 943 P.2d 1017; see § 32A-2-20(A). On appeal, we do not disturb the lower court's decision unless it "is clearly against the logic and effect of the facts and circumstances of the case." Sosa, 1997-NMSC-032, 7 (internal quotation marks and citation omitted).
In determining that Defendant is not amenable to treatment or rehabilitation as a child in available facilities, the court reaffirmed its previous findings regarding factors (1), (2), (4), (5), and (6) of Section 32A-2-20(C), and found only factor (3) in favor of Defendant. In Defendant's first appeal, we concluded that the court did not abuse its discretion in its findings regarding factors (1), (2), (4), (5), and (6). We are bound by that prior decision of this Court. We found substantial evidence to support those findings and held that the court erred only in finding that the offenses in question were committed against persons rather than against property. For the same reasons we concluded that the court did not abuse its discretion in the first appeal, we hold that the district court did not abuse its discretion on remand.
CONCLUSION
Assuming, without deciding, that the constitutional right to a speedy trial applies to sentencing proceedings, we conclude that Defendant's right to speedy sentencing was not violated in this case. We also conclude that Defendant was not denied due process, that Rule 5-604(B) is inapplicable to the amenability hearing on remand, and that the district court did not abuse its discretion in determining on remand that Defendant is not amenable to treatment or rehabilitation as a child in available facilities. Therefore, we affirm the Amended Judgment, Partially Suspended Sentence and Commitment Upon Remand of the district court.
IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
WE CONCUR: M. CHRISTINA ARMIJO, Judge RODERICK T. KENNEDY,
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